Court File and Parties

COURT FILE NO.: CR-21-10000460-0000 DATE: 2023-01-20

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – DANIEL DUBAJIC

Counsel: E. Pancer and J. Lynch, for the Crown M. Worsoff, for Mr. Dubajic

HEARD: January 11, 2023

REASONS FOR SENTENCE[^1]

SCHRECK J.:

[1] What is the appropriate sentence for a first offender convicted of possessing colossal amounts of drugs (106 kilograms of cocaine, five kilograms of fentanyl, 30 kilograms of crystal methamphetamine and four kilograms of methylenedioxymethamphetamine (MDMA)) for the purpose of trafficking and an enormous quantity of firearms and ammunition (57 handguns, eight long guns and 15,000 rounds of ammunition) for the purpose of transferring them?

[2] These items were seized when the police executed a search warrant at the home of Daniel Dubajic, which resulted in him being charged on a 73-count indictment with various drug and firearm offences. Following a judge-alone trial, Mr. Dubajic was convicted on all counts.

[3] Mr. Dubajic is 47 years old and employed as a painter. He has no criminal record. The Crown submits that the appropriate total sentence in this case is imprisonment for 25 years. Counsel for Mr. Dubajic submits that 15 years is appropriate.

[4] The following reasons explain the sentence that I have determined is appropriate.

I. FACTS

A. The Offences

(i) The Seizures

[5] The facts of this case are set out in detail in my Reasons for Judgment.[^2] Briefly, the police obtained a warrant to search Mr. Dubajic’s two-bedroom apartment, where he lived alone. About 45 minutes to an hour before the warrant was executed on November 17, 2020, police officers conducting surveillance observed two men carrying a number of large duffle bags into the building.

[6] In the apartment, the police entered a mostly unfurnished bedroom in which they found a number of duffle bags similar to those the two men were carrying. They contained a total of approximately 100 kilograms of cocaine wrapped in one-kilogram bricks. In the same room, the police found a number of plastic bags containing a total of 30 kilograms of crystal methamphetamine, a bag containing several bricks of fentanyl totalling approximately five kilograms, and another bag containing approximately four kilograms of MDMA. They also found a digital scale, a vacuum sealer and unused Ziploc bags.

[7] In the same room, the police found approximately 15,000 rounds of ammunition packed in boxes, 57 handguns, six of which were loaded, and six long guns. They also found 12 detachable box cartridges and two Glock full auto fire selector switches, all of which are prohibited devices.

[8] In the closet of another bedroom, which was furnished and admitted to be Mr. Dubajic’s, the police found a digital scale, a small plastic bag containing 12 grams of cocaine, and several “dime bags” containing a total of six grams of cocaine. Inside an ottoman in the same room, they found three baggies containing 250, 251 and 265 grams of cocaine, respectively, and a box containing 120 grams of cocaine. Six one-kilogram bricks of cocaine were found in a gym bag in the same room.

[9] A number of pieces of paper with figures on them which are alleged to be “debt lists” were found throughout the apartment.

(ii) Value of the Drugs

[10] Based on expert evidence at trial about the value of drugs, the cocaine found in Mr. Dubajic’s apartment was worth between $5,088,000 and $5,600,000 if sold by the kilogram and as much as $8,480,000 to $11,660,000 if sold by the gram. The fentanyl was worth $400,000 to $550,000 if sold by the kilogram or as much as $900,000 to $1,100,000 if sold by the gram. The crystal methamphetamine was worth $690,000 if sold by the kilogram and $2,400,000 to $3,300,000 if sold by the gram. The MDMA was worth $36,000 to $48,000.

B. The Offender

[11] Mr. Dubajic is 47 years old. He is unmarried, has no children, and has lived in the same apartment for over 20 years. He has no criminal record.

[12] Mr. Dubajic is self-employed as a painter. His living arrangements are consistent with an income one would expect from such employment. His rent is relatively low. His apartment does not appear to contain any items of value and is generally in a state of disrepair. He owns two vehicles, both of which are old and worth little. No cash was found in his apartment.

II. ANALYSIS

A. Overview of Fundamental Sentencing Principles

[13] Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society ….” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718 (a) to (f), including denunciation, general and specific deterrence and rehabilitation. While there will rarely be only one possible fit sentence, s. 718.1 of the Code provides that any sentence that is ultimately imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37; R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 30.

B. The Gravity of the Offences

(i) Assessing Gravity

[14] The gravity of an offence is a function of the type of offence and the circumstances in which it was committed. Assessing the gravity of the offence will require a consideration of a number of factors, including the blameworthiness of the requisite mens rea, the normative wrongfulness of the conduct, the harmfulness of the conduct and the penalties set out in the Criminal Code: R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641at paras. 67-68; Friesen, at paras. 75-76.

(ii) Drug Offences

[15] The quantity of the drugs found in Mr. Dubajic’s apartment is properly described as astronomical. All of the drugs are extremely harmful substances. This is particularly true of the fentanyl, the dangers of which were described by the Supreme Court of Canada in R. v. Parranto, 2021 SCC 46, at paras. 94-96:

Synthetically produced and readily available on the illicit market, fentanyl is an extremely dangerous and powerful painkiller and sedative. As with other opioids, such as heroin and morphine, it is a highly addictive substance, which, when taken outside of controlled medical environments, puts its users at risk of serious harm, including brain damage, organ damage, coma, and death. Fentanyl’s potential for harm is, however, significantly greater than other opioids. It is, for example, estimated to be 80-100 times more potent than morphine and 25-50 times more potent than pharmaceutical grade heroin. Given its strength, a lethal dose will often be less than two milligrams, an amount as small as a single grain of salt (R. v. Smith, 2016 BCSC 2148, 363 C.R.R. (2d) 365, at para. 24). The risk of overdose and death from fentanyl is thus extremely high, particularly for naïve users or where it is taken in combination with other substances, such as alcohol or other opioids. The risk of overdose is also one that can be difficult to guard against, as traffickers often surreptitiously mix small amounts of fentanyl with other substances to create a cheaper product with the same effects, thereby drastically increasing their profitability (H. Hrymak, “A Bad Deal: British Columbia’s Emphasis on Deterrence and Increasing Prison Sentences for Street-Level Fentanyl Traffickers” (2018), 41 Man. L.J. 149, at p. 153). This deceptive practice leaves users vulnerable and unaware, especially as fentanyl is physically indistinguishable from other hard drugs, such as heroin, oxycodone, and cocaine (C.C. Ruby, Sentencing (10th ed. 2020); Smith, at para. 24; R. v. Joumaa, 2018 ONSC 317, at para. 12).

Beyond its mere potential to cause harm, however, fentanyl has had -- and continues to have -- a real and deadly impact on the lives of Canadians. Indeed, trafficking in fentanyl is so deadly that various courts have described it as a national crisis, reflective of an increased understanding of the gravity of the harm it causes (see, e.g., R. v. Smith, 2017 BCCA 112, at para. 50; R. v. Vezina, 2017 ONCJ 775, at para. 58; R. v. Aujla, 2016 ABPC 272, at para. 1). This heightened understanding is supported by the available statistical evidence. The expert evidence on the record before us establishes, for instance, that fentanyl-related deaths in Alberta increased by 4,858 percent between 2011 and 2017, rising from 12 deaths in 2011 to 583 deaths in 2017. More broadly, federal statistics on opioid-related deaths show that, between January 2016 and March 2021, approximately 23,000 Canadians lost their lives due to accidental apparent opioid-related deaths, with fentanyl involved in 71 percent of these deaths (Special Advisory Committee on the Epidemic of Opioid Overdoses, Opioid and Stimulant-related Harms in Canada (September 2021) (online). The epidemic also shows no signs of abating, with over 6,000 accidental deaths occurring in 2020 alone, 82 percent of which involved fentanyl (Government of Canada, Federal actions on opioids to date (June 2021) (online)). These figures throw into stark relief the dark and inescapable reality that “[e]very day in our communities, fentanyl abuse claims the lives of Canadians” (R. v. Loor, 2017 ONCA 696, at para. 33).

[16] Although cocaine and methamphetamine are far less dangerous than fentanyl, they are nonetheless extremely dangerous. Both substances are highly addictive and destroy the lives of not only those who are addicted to them, but also the lives of their loved ones: R. v. Okash, 2010 ONCJ 93, at para. 11; R. v. Janisse, 2022 ONSC 4526, at para. 39; R. v. Copeland, 2007 ONSC 37232, [2007] O.J. No. 3390, at para. 38.

(iii) Firearm Offences

[17] Handguns of the type possessed by Mr. Dubajic are manufactured for the sole purpose of killing or seriously injuring human beings. They empower those who possess them with the ability to end the life of a person and create a lifetime of heartbreak and sorrow for those he or she leaves behind, all in a matter of seconds and often on a whim or because of a momentary loss of temper. The evils of handguns have been described in our courts many times and are so well known that I need not repeat them: Morris, at para. 68; R. v. Danvers (2005), 2005 ONCA 30044, 199 C.C.C. (3d) 490, at para. 77; R. v. Chizanga, 2020 ONSC 4647, at paras. 7-8; R. v. Brown, [2006] O.J. No. 4681 (S.C.J.), at para. 9; R. v. St. Clair, 2018 ONSC 7028, at para. 47; R. v. Kawal, 2018 ONSC 7531, at paras. 11-12.

(iv) The Combination of Firearms and Drugs

[18] While hard drugs and guns both threaten public safety, combining them can create a threat that is greater than the sum of its parts. Possessing them at the same time has often been described as a “toxic combination”: R. v. Victoria, 2018 ONCA 69, 359 C.C.C. (3d) 179, at para.129; R. v. Wong, 2012 ONCA 767, at para. 11; R. v. Omoragbon, 2020 ONCA 336, at para. 22.

(v) The Harmfulness of the Offences

[19] The harmfulness of the offences in this case cannot be overstated. There can be no doubt that if the police had not seized the items in Mr. Dubajic’s apartment, people would have died. Given the toxicity of fentanyl and the huge quantity in this case, at least some of it would have ended up leading to fatal overdoses. At least some of the handguns would have been used for their intended purpose, which is to kill people.

C. The Offender’s Degree of Responsibility

(i) Mr. Dubajic’s Role in the Trafficking Hierarchy

[20] The degree of responsibility of the offender requires a consideration of the offender’s moral blameworthiness in the context of the offender’s background, life experiences and personal characteristics: Morris, at para. 88; Friesen, at para. 91.

[21] In assessing an offender’s degree of responsibility in drug trafficking cases, the offender’s role in the trafficking hierarchy will often play a significant role. Those at the top of the hierarchy who arrange for the manufacture or importation of the drugs cause the most harm and are almost always motivated solely by profit. Their degree of responsibility is high because but for their actions, the drugs would not be available for use: R. v. Gabbidon, 2017 ONCJ 55, at para. 12; R. v. Messoudi, 2022 ONSC 2252, at para. 51; R. v. Maric, 2019 ONSC 3099, at paras. 80-81.

[22] Because of this, being at or near the top of the hierarchy is a very significant aggravating factor: R. v. Buffone, 2021 ONCA 825, 159 O.R. (3d) 401, at para. 52. As such, it must be proven by the Crown beyond a reasonable doubt: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 18. Where, as in this case, the Crown relies on circumstantial evidence to prove an aggravating factor, the existence of the aggravating factor must the only reasonable inference that can be drawn from the evidence.

[23] The Crown submits that Mr. Dubajic’s position was “near the top of this drug trafficking scheme.” Crown counsel rely on the high purity level of the cocaine, which they submit shows that it came from the source or close to the source, the “debt lists” and the fact that Mr. Dubajic possessed various “tools of the trade,” such as scales, a money counter and a vacuum sealer.

[24] There can be no doubt that those who put the drugs in Mr. Dubajic’s apartment were very high up in the trafficking hierarchy. There can also be no doubt that Mr. Dubajic stood to profit from agreeing to store the drugs. Given the amounts involved and the risk he undertook by storing it, the profit he stood to gain must have been significant, although there is no way to ascertain the exact amount. Furthermore, by his own admission, Mr. Dubajic was a drug trafficker, although he maintained that he only trafficked in small amounts of cocaine to a limited number of purchasers.

[25] Despite this evidence, I am not persuaded that Mr. Dubajic was “near the top of this drug trafficking scheme” for two reasons. First, the evidence at trial suggests that the drugs, and possibly the guns, had only been placed in Mr. Dubajic’s apartment very recently and how long those who brought it planned to leave it there is unknown. Second, Mr. Dubajic’s lifestyle and circumstances are inconsistent with him being involved at the high end of a drug trafficking scheme. He lived in modest circumstances and no cash was found.

[26] It is the Crown’s theory that the six kilograms found in Mr. Dubajic’s bedroom was his payment for storing the drugs. While this is a plausible theory, there may be other reasons why this cocaine was kept separate from the rest. Perhaps it had been stored at the apartment at a different time. Perhaps it had been set aside because someone was coming to pick it up. In any event, even if Mr. Dubajic was going to use this cocaine for his street-level trafficking business, this would be a far cry from trafficking in over a hundred kilograms of cocaine and multiple kilograms of fentanyl.

[27] The Crown also suggested that Mr. Dubajic may have been paid with some form of cryptocurrency. In my view, this is entirely speculative.

[28] In my view, the evidence is equally consistent with Mr. Dubajic’s role being restricted to agreeing to store the drugs and guns for others in exchange for some form of compensation. The evidence does not support a finding that he was a directing mind of the trafficking scheme or had any type of leadership role. It is equally likely that his role was to insulate those at the top of the hierarchy by assuming the risk of having the drugs in his possession.

(ii) Mr. Dubajic’s Degree of Responsibility

[29] All of that said, Mr. Dubajic’s degree of responsibility is nonetheless very high. He knowingly agreed to store items which he must have known had the potential to cause untold harm to large numbers of people. He valued his own desire for profit over the lives of other human beings. By agreeing to store these items, be became a custodian of death.

D. Aggravating and Mitigating Factors

(i) Aggravating Factors

[30] The aggravating factors in this case are obvious: the huge amounts involved, the very dangerous nature of the drugs and guns, and the fact that Mr. Dubajic’s role in the distribution of the drugs, while not as high as the Crown contends, was significant.

(ii) Mitigating Factors

[31] There are few mitigating factors. Mr. Dubajic has no prior criminal record. While he did not plead guilty, he made a number of admissions at trial which streamlined the proceedings. While the evidence respecting his family is sparse, it appears that he does enjoy their support.

E. The Appropriate Sentence

(i) The Applicable Ranges

[32] In cases of this nature, the sentencing objectives of general deterrence and denunciation are paramount. Mr. Dubajic was convicted on 73 counts. Any one of them would, standing alone, justify a significant penitentiary sentence. Possessing a single firearm without intending to transfer it often warrants a sentence of three to five years: R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at paras. 128-129; R. v. Mansingh, 2017 ONCA 68, at paras. 21-24; R. v. Marshall, 2015 ONCA 692, at paras. 53-56. Mr. Dubajic possessed 57 of them.

[33] Possessing fentanyl in much lower amounts than in this case can justify a sentence in the range of eight to 15 years: Parranto, at para. 68; R. v. Olvedi, 2021 ONCA 518, at paras. 58-60.

[34] Possessing multiple kilograms of cocaine similarly often results in high single-digit or even double-digit penitentiary sentences: R. v. Maone, 2020 ONCA 461, at paras. 12-13; R. v. Nero, 2008 ONCA 622, at para. 11; R. v. Brissett, 2019 ONCA 11; R. v. Sandhu, 2016 ONSC 7946. Possession of an amount similar to that in this case has resulted in a sentence of 15 years: R. v. D’Onofrio, 2012 ONSC 195.

[35] In addition to this, the drug offences and the gun offences relate to distinct legally-protected interests, which justifies the sentences in each category being consecutive to one another: R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at para. 129. In this case, however, the Crown has very fairly suggested that concurrent sentences are appropriate to give effect to the totality principle.

[36] Given these ranges, the Crown’s request for a 25-year sentence is hardly surprising and cannot be said to be unreasonable. Nonetheless, for reasons I will explain, it is not the sentence I will impose.

(ii) Deterrence, Denunciation and the Law of Diminishing Returns

(a) General Deterrence

[37] As noted, the primary objectives in cases of this nature are general deterrence and denunciation. The former is based on the premise that the sentence imposed on an offender will discourage people who may otherwise consider committing a similar offence. While the validity of this underlying premise has been questioned, general deterrence is an established sentencing objective: R. v. Bissonnette, 2022 SCC 23, 469 D.L.R. (4th) 387, at para. 47; R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941, at paras. 2-3; R. v. Foster, 2020 QCCA 1172, at para. 26; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at paras. 113-114; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 107; R. v. Biancofiore (1999), 1997 ONCA 3420, 119 C.C.C. (3d) 344 (Ont. C.A.), at para. 23; R. v. McGill, 2016 ONCJ 138, at para. 104; R. v. Reis, 2012 ONCJ 373, at para. 26.

[38] It may be supposed as a matter of common sense that there is a correlation between the deterrent effect of a sentence and its length. However, as Crown counsel acknowledged in her submissions, there will be a point at which this is no longer the case. A person who is undeterred by the prospect of a 15-year sentence is not likely to be deterred by a 20-year sentence. Put another way, the law of diminishing returns applies to the objective of general deterrence.

(b) Denunciation

[39] The objective of denunciation is distinct from that of deterrence. Denunciation has a communicative function, as was explained in R. v. M.(C.A.), 1996 SCC 230, [1996] 1 S.C.R. 500, at para. 81:

The objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particular offender’s conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77: “society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass”.

[40] More recently, in Bissonnette, the Court stated (at para. 46):

…[T]he penological objective of denunciation requires that a sentence express society’s condemnation of the offence that was committed. The sentence is the means by which society communicates its moral values (R. v. M. (C.A.), 1996 SCC 230, [1996] 1 S.C.R. 500, at para. 81). This objective must be weighed carefully, as it could, on its own, be used to justify sentences of unlimited severity (C.C. Ruby, Sentencing (10th ed. 2020), at s.1.22).

[41] Like general deterrence, the objective of denunciation is subject to the law of diminishing returns. There is a point at which a lengthy sentence makes abundantly clear the extent to which society condemns the offender’s conduct and further increases in the sentence do not meaningfully further the objective of denunciation.

[42] This conclusion finds some support in Bissonnette, which involved a constitutional challenge to a Criminal Code amendment which allowed courts to impose consecutive periods of parole ineligibility on those convicted of multiple first degree murders. The Court found the amendment to be unconstitutional, primarily on the basis that sentences that do not allow any realistic possibility of parole are incompatible with human dignity: Bissonnette, at para. 73. That concern obviously does not arise in this case, as Mr. Dubajic would eventually be eligible for parole even if he receives the 25-year sentence sought by the Crown.

[43] However, the Court in Bissonnette also made the following observation about the objectives of denunciation and deterrence (at para. 94):

Furthermore, the objectives of denunciation and deterrence are not better served by the imposition of excessive sentences. Beyond a certain threshold, these objectives lose all of their functional value, especially when the sentence far exceeds human life expectancy. [Emphasis added].

The addition of the expression “especially when the sentence far exceeds human life expectancy” suggests that the principle being described is not limited to such situations.

[44] Denunciation is considered a primary objective in cases such as this because the offences have very significant and even life-threatening consequences. The conclusion that a sentence lower than that sought by the Crown can effectively communicate society’s abhorrence for conduct that intentionally put the lives of others at risk is supported by the sentencing range for attempted murder, another offence that involves a disdain for human life. The usual range of sentence for cases of attempted murder with significant aggravating factors such as the discharge of a firearm is 12 to 15 years; R. v. Wight, 2022 ONSC 5137, at paras. 43-45; R. v. Jones-Solomon, 2015 ONCA 654, 329 C.C.C. (3d) 191, at paras. 80-86; (Ont. C.A.), R. v. Atherley, 2009 ONCA 195; R. v. Thompson, 2008 ONCA 693, at paras. 6-7; R. v. Warner, 2019 ONCA 1014; R. v. Smith, 2022 ONSC 3800, at paras. 26-31. In my view, if a 12 to 15-year sentence is sufficient to denounce the type of conduct that occurred in those cases, denunciation of Mr. Dubajic’s conduct does not require a 25-year sentence.

(iii) Rehabilitation

[45] While deterrence and denunciation are the primary sentencing objectives in cases such as this, the principle of rehabilitation cannot be ignored. I agree with the Crown that Mr. Dubajic has shown no remorse whatsoever and there is no evidence that he has engaged in any type of rehabilitative efforts since his arrest. However, I do not agree that this means that rehabilitative potential “simply does not exist.” It cannot be forgotten that Mr. Dubajic is a first offender. He managed to reach his mid-40s without being convicted of a criminal offence, which shows that he is capable of being a law-abiding member of the community.

[46] Rehabilitation was recently discussed by the Supreme Court of Canada in Bissonnette, at para. 48:

... [T]he objective of rehabilitation is designed to reform offenders with a view to their reintegration into society so that they can become law-abiding citizens. This penological objective presupposes that offenders are capable of gaining control over their lives and improving themselves, which ultimately leads to a better protection of society. M. Manning and P. Sankoff note that rehabilitation “is probably the most economical in the long run and the most humanitarian objective of punishment” (Manning, Mewett & Sankoff: Criminal Law (5th ed. 2015), at para 1.155). Along the same lines, I would reiterate my comment in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, that “[r]ehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world” (para. 4).

[47] All of the sentencing objectives, including denunciation, deterrence and rehabilitation, are subordinate to the fundamental purpose of sentencing as set out in s. 718 of the Criminal Code, which is “to protect society.” Rehabilitation, where a prospect of it exists, goes some way towards achieving that goal, even in cases where deterrence and denunciation are paramount. It follows from this that where possible, a sentencing court should avoid imposing a sentence that is so long that it deprives the offender of any hope of release or rehabilitation: R. v. Johnson, 2012 ONCA 339, 285 C.C.C. (3d) 120, at paras. 17-18; M.(C.A.), at para. 42.

(iv) Proportionality and the Appropriate Balance

[48] As noted earlier, the sentence that is imposed must ultimately be proportionate to the gravity of the offence and the degree of responsibility of the offender. While both are significant and the sheer quantity of drugs and firearms is enormous, for the reasons I have explained I am not satisfied that Mr. Dubajic played an organizing role or was a directing mind of the trafficking scheme. His degree of responsibility is nonetheless significant and a significant sentence is warranted.

[49] Having considered the gravity of the offence, Mr. Dubajic’s degree of responsibility and the aggravating and mitigating factors, I have concluded that the appropriate sentence in this case is 18 years. In my view, this number strikes the appropriate balance between giving sufficient emphasis to the principles of deterrence and denunciation, which must be given priority, while preserving some hope of rehabilitation.

F. Presentence Custody

(i) “Summers Credit”

[50] Mr. Dubajic is entitled to the usual credit for time spent in presentence custody, granted in accordance with s. 719(3.1) of the Criminal Code (often referred to as “Summers credit” after the decision in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575). I am advised that he has spent 1113 days in presentence custody which entitles him to a credit of three years and 18 days, which counsel agree should be rounded up to three years and one month.

(ii) “Duncan Credit”

[51] There is evidence that Mr. Dubajic spent a significant amount of time in custody subject to lockdowns because of staffing shortages, and was also subject to quarantine for periods of time. In addition to this, he was often “triple bunked” and it appears had only sporadic access to fresh air. The unacceptability of such conditions has been the subject of frequent judicial disapprobation: R. v. Powell, 2020 ONCA 743, at para. 30; R. v. Johnson, 2022 ONSC 5899, at paras. 69-70; R. v. S.H., 2022 ONSC 4900, at paras. 88-90; R. v. Thomas, 2022 ONCJ 303, at paras. 43-44; R. v. Henry-Robinson, 2022 ONCJ 302, at paras. 43-47; R. v. Doyle, 2022 ONSC 2489, at paras. 54-59; R. v. T.T., 2022 ONSC 722, at para. 46; R. v. Osman, 2022 ONSC 648, at paras. 41-43. It has gone unheeded.

[52] Unduly harsh conditions of presentence custody are a relevant factor on sentencing and reductions in sentence to account for them are often referred to as “Duncan credit” after the decision in R. v. Duncan, 2016 ONCA 754. “Duncan credit” has become a routine part of sentencing in Toronto courts due to the Ministry of the Solicitor General’s steadfast refusal to address the systemic problems that justify it. In this case, counsel agree that the appropriate “Duncan credit” is one year and one month.

(iii) The Distinction Between “Summers Credit” and “Duncan Credit”

[53] As was explained in R. v. Marshall, 2021 ONCA 344, at paras. 50-52, there is a conceptual distinction between “Summers credit” and “Duncan credit.” The former is a deduction from what is determined to be the appropriate sentence whereas the latter is one of the factors that is taken into account in determining the appropriate sentence. A court may, but is not required to identify a specific number of days or months as “Duncan credit”: Marshall, at para. 53. I have done so in this case because counsel have agreed on a number.

[54] Where the quantum of “Duncan credit” is specified, the conceptual distinction explained in Marshall will not affect the ultimate sentence the offender will be required to serve. However, it will affect how the Warrant of Committal on Conviction (Criminal Code, Form 21) is completed, as it requires the court to identify the term of imprisonment that would have been imposed before credit is granted pursuant to s. 719(3.1). As a result, “Duncan credit” is not specifically identified on the Warrant of Committal.

[55] For this reason, the Warrant of Committal should indicate that the sentence that would have been imposed before credit for presentence custody is granted pursuant to s. 719(3.1) is 16 years and 11 months (the 18 years I have determined is appropriate less the one year and one month of “Duncan credit” agreed to by counsel.” The Warrant of Committal should identify the credit for presentence custody as being three years and one month. The sentence that remains to be served is therefore 13 years and 10 months.

III. DISPOSITION

[56] For the foregoing reasons, the sentences imposed on Mr. Dubajic are as follows:

Count 1: 16 years and 11 months. Count 2: 14 years Count 3: 10 years Count 4: 3 years Counts 5 to 8: 14 years Counts 9 to 51 and 60 to 73: 8 years Counts 52 to 59: 5 years.

All sentences are to be served concurrently. The total sentence is therefore 16 years and 11 months. Mr. Dubajic is to be given a credit of three years and one month for 1113 days in presentence custody. The sentence that remains to be served is therefore 13 years and 10 months.

Justice P.A. Schreck Released: January 20, 2023

Footnotes

[^1]: An abbreviated version of these reasons was delivered orally in court. In the event of any inconsistency between those oral reasons and these written reasons, the written reasons should be taken as correct. [^2]: R. v. Dubajic, 2022 ONSC 6971.